Polleys and Elizabeth Polleys. No other from the whole will. Frelinghuysen v. N. Y. children or grandchilden of Maria and Wil- Life Ins. & Trust Co., 31 R. I. 150, 157, 77 liam Whipple Brown have died, and none Atl. 98, and cases cited. And that we will have been born since the death of the testa- also consider the circumstances under which trix. Both Maria and William Whipple the testatrix wrote her will, in order to asBrown are dead. Charlotte Perkins Gilman certain her intention, "so as to look at it, and Catherine Stetson are both alive. At as far as possible, from the testator's point the death of the testatrix there were living of view," as was said in Boardman, Peti17 children and grandchildren of Maria and tioner, 16 R. I. 131, 145, 13 Atl. 94, 99. See, William Whipple Brown, and also Charlotte also, Smith v. Bell, 6 Pet. 68, 8 L. Ed. 322; Perkins Gilman and Catherine Stetson. 30 Am. & Eng. Enc. of Law, 666, 667.

|

where a testator in one part of will gives a particular estate, and in subsequent passages shows that he means the legatee to take a lesser interest only, the prior gift is restricted accordingly. Such subsequent provisions will not take from an estate given qualities that the law regards as inseparable from it, but they are operative to define the interest given. The fact that there is no limitation over is immaterial.

A case somewhat similar to that at bar is Bundy v. Bundy, 38 N. Y. 410. There a will provided: "I give and devise unto my wife, Clarissa M. Bundy, and Ellen K. Bundy,

her trustees, for his benefit, or that any portion of the income of her estate should be used for him until after the resources of his own estate were first applied. The constant repetition by her, in various words, in the same paragraph of the will whereby she provides for his support, no less than three or four times, saying explicitly in one place "his own income is first to be used for his support, and expenses, and after that the income I leave is for his use," coupled with the explicit direction to the trustees that all net income is to be credited to her estate, "but to be used freely for the benefit of my said husband, whenever his own income, all my real and personal estate, from the estate of the late Henry Anthony, property, assets and effects, subject to my does not prove at times sufficient, from any debts. I also further will and direct, that cause, but always, his own rightful income, in case either the said Clarissa M. should is first to be expended, upon him, and then die without heirs, or that the said Ellen R. when necessary, falling back, upon the in- should die without heirs that the proceeds come accruing from my trust estate," shows invested for either so dying, after sale of most conclusively that she intended him to my said property, should be equally distribhave only such limited use of her income aft- uted among the heirs at law of my mother. er the exhaustion of his own, and that all And I further will and direct, that my exremaining net income not so used for his ecutors, hereinafter to be named, sell and benefit should remain in the hands of her convey my real estate, and convert my pertrustees for the benefit of her own estate, to sonal property into cash; also that the said be used in carrying out the subsequent pro- executors invest the proceeds of the sale of visions of her will. And it is to be noted both my real and personal property, in bond that this construction of her intention from and mortgage, or other good securities. I the plain terms of the will is entirely con- M. and the said Ellen R. use respectively so also will and direct, that the said Clarissa sistent with the facts clearly established that she always, during her lifetime, pro- much, or enjoy the use of so much, of the vided for his support out of his own prop-interest arising out of the said bonds and erty, and never used any of her own income for his support, so long as she lived.

The mere fact that the testatrix, in the opening sentence of the portion of the will above quoted, used words which in their technical meaning would be sufficient to create a legal life estate in her husband, will not be allowed to override the plain intent and meaning of the provisions taken as a whole, so as to prevent the creation of the trust estate, or to nullify the other provisions of the will relating to the disposition of the income by the trustees. Where the context or other parts of a will indicate that technical words are not used in their ordinary technical meaning, they will be interpreted by the court in the sense intended by the testatrix. See Ross v. Nettleton, 24 R. I. 124, 52 Atl. 676; Cook v. First Universalist Church, 23 R. I. 62, 49 Atl. 389; Gallagher v. R. I. Hospital Trust Co., 22 R. I. 141, 46 Atl. 451; Bailey v. Brown, 19 R. I. 669, 36 Atl. 581; Homer v. Shelton, 2 Metc. (Mass.) 194, 198; 1 Redf. Wills (3d Ed.) 409.

In answer to the first question above quoted, we are therefore of the opinion that the whole net income of said trust estate does not belong to said Frederick E. Anthony, but only so much thereof as shall be needed for his support and comfort, after the income from his own property has been used.

Other courts have construed similar wills

mortgages, or said other securities, or both, as shall be necessary and proper for their interest be not sufficient for such maintemaintenance and support; and that, if the them, shall receive funds for such support nance and support, then they, or either of from the principal so invested." The court held that Clarissa was entitled only to an amount sufficient to support her during life.

In Re Shower's Estate, 211 Pa. 297, 60 Atl. 789, a will provided: "After the death of my wife, Elizabeth, I direct all my estate then remaining to be divided equally between all my children share and share alike; the trustee or trustees appointed as before provided to receive in trust for my son Frederick and daughters Sarah and Clara before named the share to which each may be entitled respectively"—and then this was made subject to certain restrictions. The court held that the children were entitled only to equitable life estates subject to the restrictions, and said (211 Pa. pages 302, 303, 60 Atl. 789, 791): "It is settled by our cases that an estate of inheritance in real estate or an absolute interest in personalty given in a will may be reduced to a lesser estate if the subsequent language of the instrument unequivocally shows that such was the intention of the testator. 'No principle is better settled,' says Strong, J., in Sheet's Estate, 52 Pa. 257, 'than that, if a testator in one part of his will give to a person an es

interest in personalty, and in subsequent | possession and control of the property bepassages unequivocally shows that he means the devisee or legatee to take a lesser interest only, the prior gift is restricted accordingly. Subsequent provisions will not avail to take from an estate previously given qualities that the law regards as inseparable from it, as, for example, alienability; but they are operative to define the estate given, and to show that what without them might be a fee was intended to be a lesser right.' This language is quoted with approval in Snyder's Appeal, 95 Pa. 174, Good V. Fichthorn, 144 Pa. 287, 22 Atl. 1032, 27 Am. St. Rep. 630, and Krebs' Estate, 184 Pa. 222, 39 Atl. 66. 串 Nor is the fact that there is no limitation over of the principal sufficient to control the quantum of the estate in the cestuis que trust."

*

queathed and devised to their said beneficiaries during the lives of said beneficiaries. Said trustees are not authorized to dispose of any of the body of said property, but are expressly prohibited from so doing, except for the purpose of reinvesting, which last they may do at their discretion. Said trustees are authorized and empowered and directed to expend the rents, interests and profits arising from said property in furnishing the said beneficiaries with necessaries and such other things as may be suitable for the respective beneficiaries, according to their stations in life." On a suit to construe the will, the court held that items 9 and 10 ought not to be rejected as repugnant to item 2, but with them operated to give the legal estate to the trustee, and that Moore's children took only a beneficial interest. The court said (96 Tex. 138, 139, 70 S. W. 743) : "In this case we must construe clauses 2 and 7 of the will in question in connection with clauses 9 and 10. The language of the two former, if unaffected by the latter two, would by virtue of the operation of our statute have conveyed to the devisees therein a fee-simple title to the property. The intention of the testatrix must be given effect, unless prohibited by law. That the provisions in clause 10 do not contravene any rule of law we think clear."

* * *

See, also, Taggart v. Murray, 53 N. Y. 233 (1873); In re Boulevard from Second St. to Rhawn St., 230 Pa. 491, 79 Atl. 716 (1911).

[3] As to the second question above set forth, whether the surplus income shall be accumulated during Mr. Anthony's life to be paid over with the principal to those

Haring v. Shelton, 114 S. W. 389 (Tex. 1908). Here a will provided: "I give and devise unto my beloved wife, C. C. Shelton, her heirs and assigns forever, the following described tracts or parcels of land and it is my will that my said wife, C. C. Shelton, and her heirs shall hold said lands in fee simple forever, or so long as she shall remain a widow." Although there was no gift over, the court held that the heirs of the testator could recover the land from C. C. Shelton's grantee, and said (page 391): "Here the limitation of the estate to the widowhood of Mrs. Shelton is contained in the very terms of the devise and the intention of the testator is unmistakable. It is conceivable that the testator, having it in mind to limit the estate devised to his wife to her widowhood, may have used the language importing, taken by itself, an intention to make an absolute gift, without clear-entitled upon his death, etc., we are of the ly understanding the import of such language, as repugnant to the limitation; but it is not reasonably conceivable that he would have used, in this very connection, the language or so long as she shall remain a widow,' without having the specific intention to vest an estate determinable upon his widow contracting a second marriage. It is true there is no devise over, but that does not destroy the limitation, but leaves the remainder to descend as in case of intestacy. It being clear that the testator did not use the words, 'so long as she shall remain a widow,' without a full understanding of their import, and that they express his intention, we do not think that intention should be defeated by the application of any technical rules of construction."

opinion that it is the plain intent and meaning of the will that the trustees shall accumulate the income, over and above such portion thereof as may be properly expended for Mr. Anthony's support in accordance with our opinion already expressed; and that such accumulated income becomes a part of the trust estate in their hanus to be distributed in accordance with the subsequent provisions of the will.

Counsel for Mr. Anthony contend that "there nowhere appears any direct reference to any surplus of income, and there is no direction for the accumulation of the surplus for the benefit of the remaindermen," and that there is no ground for implying such a direction. It is true that nowhere has the testatrix used the word "accumulate" or "accumulation." But she gave the following directions: "All income, exceeding, what is necessary for taxes, repairs, incidental expenses, and salary of the trustees, to be

Dulin v. Moore, 96 Tex. 135, 70 S. W. 742 (1902). In a will were the following clauses: Item 2d. To the children of my son, A. B. Moore, he being dead, I give and devise" certain real estate. "Item 9th. I hereby ap-credited to my estate, but to be used freely point R. R. Dulin of Sherman, Texas, trustee to receive and control the property bequeathed and devised to the children of A. B. Moore. * * Item 10th. I hereby direct and empower the said trustees to keep

*

for the benefit of my said husband, whenever his own income, from the estate of the late Henry Anthony, does not prove at times sufficient, from any cause, but always, his own rightful income, is first to be expended,

upon him, and then when necessary falling back, upon the income accruing from my trust estate." It is our opinion that this direction to "credit" the income to her estate amounts to a direction to accumulate it, and the testatrix, by providing that the trustee may "fall back” upon it, shows an intention to treat the surplus income accruing as principal. The same idea is expressed in the following direction to "deposit" the income: "And all of the residue of the net income, to pay to my husband, for his own use, if he be able to care for, and use the same, if not, as I have said before, deposit it in the name of my trust estate, to be used for any necessity, or luxury, which may be for his comfort." It may be that the vocabulary of the testatrix did not contain the technical term "accumulate," and so to express her desire to convert the income into capital she used the words which her business experience rendered familiar to her, "credit" and "deposit." And that the accumulation was to be for the benefit of the residuary legatees is made clear by the residuary clause which disposes of "whatever may now be left of the so called trust estate," previous provisions having carefully defined the "so called trust estate" and directed that the income accruing from it should be made a part of it.

necessarily accumulates." Such was the holding in Eberly's Appeal, 110 Pa. 95, 98, 1 Atl. 330, in which the court used language almost identical with the above. The following are among other cases which recognize and apply this principle: McDonald v. Bryce, 2 Keen, 276; Penrose's Appeal, 102 Pa. 448; Scott v. West, 63 Wis. 529, see pages 573, 574, 24 N. W. 161, 25 N. W. 18.

[5] As to the second branch of the second question submitted to us, whether such surplus income can be divided and paid over from time to time during the life of Mr. Anthony, and, if so, to whom and in what proportions, we are of the opinion that the case is not such as to warrant this court in making any order for such payment. While it appears from the evidence that in all probability the principal of the trust estate will be amply sufficient to pay the very numerous pecuniary legacies, payable after Mr. Anthony's death, some 37 in number, and amounting in the aggregate to the sum of upwards of $50,000, without its being necessary to resort to the accumulated income of the estate, nevertheless, as very large portions of both real and personal estate are specifically devised, and bequeathed, and othhave to be sold to raise the necessary funds. er portions of real and personal estate will and it cannot now be known what will be realized from such sales, it cannot at present be accurately determined whether there is sufficient property to carry out all of the duty of the trustee to treat as principal the provisions of the will and still leave the acincome of the trust property, instead of dis- cumulated income intact. It is further to be tributing it in the ordinary course, there is noted that the testatrix in making these an accumulation." In Matter of Estate of numerous bequests divides them into several Fisher, 4 Misc. Rep. 46, 47, 25 N. Y. Supp.ment in case there is not enough remaining classes, and constantly provides for abate

The authorities treat such expressions as directions to accumulate. The law is summarized in 22 Am. & Eng. Ency. of Law (20 Ed.) 728: "In any case where it is made the

79, 80, a will directed the trustee under it to pay off a mortgage from the income of the estate. The court held that this in effect directed an accumulation (which was

void under a statute) and said of the income: "It goes into and forms part of such estate and increases the capital, the income

of which is distributable under the trusts in

to pay them all. No case is cited on behalf of the children and grandchildren of Maria and William Whipple Brown, for whose benefit and to whom such distribution is urged, which is like the case at bar, or in which there are so many bequests to be provided for. The case of Barstow v. Thomas, 20 R.

the will, and the augmented principal ulti-I. 561, 40 Atl. 498, is not directly in point, mately. The provision is, in effect, precisely the same as if the testator had, in so many words, required the trustee to apply the income to swell the principal of the trust

fund."

as in that case the time for the distribution of the estate subject to an annuity and certain expenses, expressly provided for in the will, had arrived, and the question of anticipated distribution was not involved; and the real question was as to the amount of prop

[4] But no such express direction is necessary. If a part of the income of a trust es-erty which should be retained by the trustee tate is undisposed of, the trustees should, even in the absence of any provision whatsoever, accumulate it and pay it to the legatees entitled to the original corpus of the estate.

In 22 Am. & Eng. Ency. of Law (2d Ed.) 729, it is said: "A direction to accumulate need not be express; it may be implied from the terms of a will or deed, as where the instrument disposes of an estate in such a manner that an excess above what is rea

to provide for the annuity and expenses. In the case of Harbin v. Masterman (1896) 1 Ch. 351, which was a case of anticipated distribution, there were several annuities charged upon the estate; but all of the annuitants. except one consented to the distribution, and it was clearly shown that the annuity of the one objecting was amply secured by a deposit of government stock or consols; and it further appears in the report of the case that this ostensibly objecting annuitant was not

lowed her counsel to use her name for ulte- | lotte Perkins Gilman and Catherine Stetson rior purposes of his own, for which he was and with each other. In the absence of exseverely reprimanded by the court, and or- pressions of a contrary intention, a gift to dered to pay costs. The other cases cited to "A. and the children and grandchildren of this point have no more bearing upon the B." gives each child and grandchild a share case at bar than the two last above re equal to A.'s and to that of each other child ferred to. and of each other grandchild. In Guild v. Allen, 28 R. I. 430, 436, 67 Atl. 855, 857 (1907), Mr. Justice Johnson said: "In geueral, where a gift is to the children of several persons and the children of another person, they take per capita and not per stirpes." See, also, Schouler, Wills (2d Ed.) § 540; 2 Jarman, Wills (5th Amer. Ed.) 756, and cases cited. Moreover, the words "to be equally divided, share and share alike," show unmistakably that this was the intention of the testatrix.